This week, a 17-year-old Texas native learned that the state will try him as an adult in a capital murder case — and that the lyrics from his viral rap song “The Race” could be used against him.
Taymor Trayvon McIntyre, who is better known by his stage name Tay-K 47, has been accused along with six others of the 2016 home invasion that resulted in the murder of 21-year-old Ethan Walker. He’s also wanted by authorities in connection with other violent crimes. McIntyre maintains his innocence.
But his budding music career could present an issue for him. “The Race” depicts a fugitive of the law with violent murderous tendencies, and prosecutors may argue that such a sharp illustration of disregard for other’s lives could be enough to place the gun that dealt Walker the final blow in McIntyre’s hand. The case is the latest example on a rather long and growing list of rap music finding itself on trial.
Back in March, while McIntyre was under house arrest awaiting sentencing, he cut off his ankle monitor and fled the state of Texas. Three months later, he started tweeting about an upcoming music release. The young rapper uploaded his video for “The Race” to YouTube on June 30th and, as irony would have it, the law caught up with him almost immediately. He was apprehended in New Jersey that same day. While the days passed for McIntyre in jail, his song raked in millions of views and made it to the 52nd spot on the Billboard Hot 100 chart. His fans and peers showed their support by way of shoutouts on social media and freestyle covers of his hit.
McIntyre is small in stature with a youthful face. He has a prominent gap in his teeth, short hair, and boasts an almost childlike smirk. There’s an innocence still in his eyes. That image is in stark contrast to when he poses as Tay-K 47, holding guns and rapping loosely about someone getting “popped in the face.”
This character isn’t new: A young man (most often black or Hispanic) with scant resources and dim opportunities in an environment where his peers are desperately attempting to make a way for themselves through drug dealing, gang banging, and other crime — you know, the stuff of a rap song — turns to creating rap himself. This kid writes a few raps, makes a few amateur videos, and hopes it could lead to some sort of break, or at the very least provide some sort of release.
This genre, like most good art forms, grew organically out of its environment for survival. But it also has a nasty way of coming back to haunt these young men.
Amatuer rap lyrics are seeping into the evidence gatherings of more and more cases across the country. High profile instances include Elonis v. United States, a case in which a man’s graphic and violent lyrics on his Facebook page directed at his ex-wife alarmed authorities. Another case that made headlines came from Vonte Skinner, an aspiring rapper from New Jersey who went on trial for attempted murder and faced the potential that lyrics written years prior could be used against him. It was ultimately ruled that Skinner’s rap lyrics wouldn’t stand as evidence in this particular case.
Rap lyrics could play into evidence in one of three ways: used as party admission, used as character evidence, or reviewed under the process of probative prejudice balance.
When used as a party admission, prosecutors can argue the lyrics could be operating working as a confession from the defendant, describing actual crimes they committed. When used as character evidence, prosecutors can argue the lyrics and the persona created by the rapper might fuel suspicions of the likelihood the defendant committed the crime based on the defendant’s personality revealed in their lyrics. The process of testing lyrics against probative prejudice involves weighing the specificity within the lyrics, how relevant they are to the crime at hand, and how likely it is that they could inform a juror’s bias.
“Many of these rappers create these stage names for themselves to further signal that they are creating a persona. They are creating a character and then they are living out that character in their lyrics.”
But advocates, experts of the genre, and culture critics alike have been warring against putting rap lyrics on trial — arguing it equates to a grave misunderstanding of the musical form.
“Rap is a fictional form,” said Erik Nielson, an associate liberal arts professor at the University of Richmond who is an expert in hip-hop and who has had made it his passion project to defend rap in court.
Nielson has offered guidance to dozens of cases, often working to increase the prosecution’s understanding of how the genre works. He can’t stress enough the key elements of rap — a genre filled with hyperbole, personas, and puffed up references to other rappers.
“Many of these rappers create these stage names for themselves to further signal that they are creating a persona. They are creating a character and then they are living out that character in their lyrics,” Nielson said. “I’m not saying that it doesn’t have connections to the author’s or the creator’s everyday life. All fiction does to a certain extent. But it’s still fiction.”
Professional examples abound of rappers playing out a character rather than delivering a literal chronicle of events. There’s Rick Ross, born William Leonard Roberts II, who worked as a correctional officer in Florida before his rap career and famously based his stage name on the drug trafficker named “Freeway” Rick Ross. There’s Marshall Mathers, who’s better known as Eminem and who’s also gone by Slim Shady. Tyler the Creator, whose lyrics are very graphic, is another artist who is drenched in hyperbole.
It’s easier to make the case that these famous artists are playing a role, and therefore harder to argue in court that their lyrics should be taken literally, according to Paul Rothstein, a professor of law at Georgetown Law who is well known for his work in evidence, civil, and criminal lawsuits.
When it comes to amateur rappers like McIntyre, however, prosecutors are more likely to be able to make the case that they’re not established enough to be considered as artists spinning a fictional narrative. Especially if their tracks include references to addresses and names that reflect details at play in the case, the prosecution can try to argue they’re bragging about things they’ve actually done.
“It’s more plausible that a [professional] rap artist might be just performing art and fantasizing, as he makes his living at it,” Rothstein said. “There’s not much motivation for someone who’s not a rap artist to do that as a fantasy. The motivation is more likely bragging. It’s less clearly art or a story.”
In “The Race,” the lyrics allude to murder at least four times within the track’s 2:20 length. A specific gun style and maker is referenced in the last line. There isn’t mention of a specific instance, person, or place beyond general hometown pride and nods to other rappers.
“In general, if a person has written something which seems to implicate that person in the crime being charged, that does come in. But the conflicting and compounding fact here would be that it was just fantasy, it was just rap lyrics. If the judge feels that jury can understand that and make proper allowance for that and weigh that properly then, the trial judge will let it in,” Rothstein says.
Regardless, many critics still feel that the use of rap in the courtroom is almost always prejudicial — meaning the use of rap songs in criminal cases is ultimately an affront to the genre and the community most likely to create it, black men.
“That’s my concern with the use of rap lyrics as evidence in any of these cases,” Nielson said. “Prosecutors know, or they should know, that they are in fact highly prejudicial. And I suspect in many cases that they do know and that’s precisely what they want.”
“They use rap music to improve their lives, and then they are punished for that. It is one of the many traps set for young black men in our society by the justice system and elsewhere.”
According to Nielson, it’s also worth considering when evaluating guilt that an aspiring rapper — much like McIntyre, who’s still developing momentum — isn’t just doing this for vanity. These young men are working to craft a career, “and they know that the one thing that could really mess this up is a long prison sentence.”
McIntyre’s next steps aren’t certain. It’s still not clear whether “The Race” or any of his other music will make it in as evidence, though members from his legal team and Nielson said they think the prosecutor will certainly try. Not giving his music any consideration at all would amount to negligence, in Rothstein’s opinion.
Still, it’s hard to ignore the irony in it all. McIntyre as Tay-K 47 (a distinction between the individual and his musical persona that Nielson wishes more people would make) raps “I was tryna beat a case // But I ain’t beat that case, bitch I did the race.” Well, he certainly tried.
“In some ways it speaks to the dilemma that so many young men like him face. They use rap music to improve their lives, and then they are punished for that,” Nielson said. “It is one of the many traps set for young black men in our society by the justice system and elsewhere.”